Putting children’s interests first in family law and policy

Adults' sexual choices are not always best for children. Part 1 of 2.

Alysse ElHage and Helen M. Alvaré | Jan 23 2018 | comment

In her new book, George Mason University law professor Helen Alvaré critiques the U.S. government’s long-standing response to the problems associated with nonmarital childbearing, and offers what some might view as a radical proposal: a shift in federal policy and programs away from prioritizing the needs and desires of adults and toward the best interests of children.

The book, Putting Children’s Interests First in U.S. Family Law and Policy: With Power Comes Responsibility, is a relatively concise and worthwhile read that includes the author's thoughtful recommendations for how the government can better prioritize the welfare of children in social policy going forward. Alysse ElHage of the Institute for Family Studies recently spoke with Professor Alvaré about her book, and what follows is an edited transcript of that interview, which will run in two parts.

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Alysse ElHage: Throughout the book, you use the term “sexual expressionism” whenever you discuss the U.S. government’s response to nonmarital childbearing. Define it for us—and is that a term you coined?

Helen Alvaré: I did coin the phrase as a legal term, although I have seen it used in the sociological or cultural realms on rare occasions to refer to different theories about sexual acts. As a legal term, I am referring to the valorization of adult sexual behavior alongside silence about, or indifference to, the sexual partners’ marital status, and to the fact that children’s family structure (an important aspect of children’s well-being) is regularly determined at the time of their conception. By “valorization,” I mean claiming that adult sexual choices are closely associated with profound human goods such as dignity, freedom, equality, and identity.

Alysse ElHage: You point out in the book's introduction that it “remains dangerous to write about nonmarital childbearing.” What are the dangers, and why did you pursue writing this book despite these dangers?

Helen Alvaré: It’s dangerous because of the risk that working to reduce nonmarital births—even in the name of assisting vulnerable children—will be equated with judging and disparaging single mothers and fathers. But, of course, it is not my place to judge them, and I do not do that in this book or in my personal life. We know, however, that children benefit from the presence of both of their parents in a stable, low-conflict marriage. I wrote it because not only has the federal government regularly ignored this finding, but on many occasions, it has gone to great lengths to valorize adult sexual choices at high risk for nonmarital births, or even to bless nonmarital childbearing outright. And I chronicle these legal moves in the book. In the name of children’s well-being—and perhaps especially to try to help to shorten the gap between wealthier and poor children—it seems necessary to me to at least accurately describe what federal lawmakers are doing.

Alysse ElHage: The book focuses on the government’s two major responses to nonmarital births: contraceptive programs and social welfare programs, which you view as largely inadequate. Some experts, like Isabel Sawhill at Brookings, argue that to address the problems associated with nonmarital childbearing, we need more and better contraception, specifically long-acting reversible contraceptives (LARCs). However, you describe the government's focus on contraception, including the promotion of LARCs, as “outdated.” Why?

Helen Alvaré: This is perhaps the most controversial part of the book. Many experts, including government agencies themselves, understand that aside from meeting families’ basic needs for food and shelter, the effects of social welfare programs are modest when it comes to the well-being of children living apart from their mother or father or both. But most people retain something like an unshakeable “faith” in the powers of contraception to avoid the births of children who would otherwise suffer poverty or family instability. And they reason that if ordinary contraceptives produce decent but not great results (with the National Institutes of Health publishing failure rates ranging from 9-30%), then the answer must be LARCs. It seems like such robust logic.

In the book, I document how rates of unintended pregnancies have either increased or remained stable over periods of time during which rates of contraception usage and funding were increasing. I discuss the (not really surprising) relationship between contraception’s unlinking of sex from ideas about love, future, children and marriage—and higher rates of nonmarital sex, pregnancy, and births. I review the work of economists and sociologists demonstrating the additional relationship between the decline of marriage and even dating, and a declining “weight” of sex. I also consider the growing amount of scholarship and qualitative reports about some worrisome health-effects especially of hormonal contraception, and about minority women’s continuing suspicion of the “contraception solution.”

"Federal contraception policies have relied on the counterintuitive idea that we could build family stability on a framework of urging men and women having sex to forget about the possibility of building a secure relationship with one another and to forget about children and their need for parents."

The market for contraception use also appears to be nearly saturated. This is evident from the excellent interviews in the landmark book, Promises I Can Keep. It's also evident in the Guttmacher Institute’s conclusion that healthcare reform’s “contraception mandate” didn’t increase the use, or change the mix of contraception women were using. And all of this coexists with new labor markets, women’s outpacing men’s college graduation rates, and ideas about male/female relations and sex, which render contraception far from the straightforward “silver bullet” its proponents assume.

Even the much-hyped St. Louis and Colorado trials to strenuously promote LARCs among largely poorer or young populations are by no means convincing. They lacked control groups, did not account for the contemporaneous declines in national abortion rates, raised the specter of pressure upon vulnerable populations, failed to monitor accompanying sexually transmitted infections or partnership stability or other health effects, and credited wide population effects to LARCs—when in fact, the LARCs were only distributed to a small fraction of the state’s women and girls.

In sum, contraception has had decades to prove that it can do what its proponents hope, but it has failed. Still, because there is no doubt that it will continue to not only be legal but generously-funded by state and federal sources, I offer suggestions to bring contraception policy in line with a more complete set of needs on the part of women and children.

Alysse ElHage: You mentioned bringing contraception policy more in line with the needs of women and children. How would you do that?

Helen Alvaré: Federal contraception policies have relied on the counterintuitive idea that we could build family stability on a framework of urging men and women having sex to forget for a long time about the possibility of building a secure relationship with one another, and to forget about children and their need for parents. I argue that we need to reverse course not only for children but in order to better satisfy women’s preferences for commitment and marital childbearing.

So, federal law and policy need to cease broadcasting sexual expressionism—to “first do no harm”—and put care for children back into thinking about sex. Contraception programs are a crucial venue for this, and will likely have the continued support of Democrats as well as Republicans. Here, my proposals are incremental because the terrain is complex.

I took inspiration from places where federal or local governments mandate that “cautions” be attached to products with potentially harmful outcomes: cigarettes and gasoline. I proposed similar “caution” in connection with contraception, including warning that sex also “makes babies” and that “the moment of conception is also the moment that a child’s family structure is formed.” It would also warn: “If you get in the habit of distancing yourself emotionally and mentally from sexual partners and from the children you might create, it could be harder for you to form a strong marriage later, or for you and your spouse to become dedicated parents.” This caution should be included in programs from sex education and contraception distribution programs, to any FDA policy on informed consent, and even in Congressional rhetoric in amicus briefs.

Republished from the Institute for Family Studies blog with permission. Part 2 to come.

January 26, 2018

Happy Australia Day!

January 26 is usually a placid event Down Under, a public holiday of BBQs, visits to the beach and backyard cricket, rather than parades. This year, however, it has been troubled by protests from Aboriginal groups – the first custodians of the continent – and the Greens Party.

They point out that Australia day commemorates the raising of the British flag over Sydney in 1788. “Invasion Day” was the beginning of the dispossession, dispersal and degradation of the Aboriginal people, a day of shame.

Certainly they have a point. But many national holidays are painful reminders of past injustices. India’s Republic Day, which is also celebrated today, calls to mind the partition of the British Raj in 1947. Perhaps a million people died in the ensuing riots.

Independence Day, July 4, is a day of pride for Americans, but for 70,000 or so loyalists to the British Crown, it meant exile. France’s Bastille Day on July 14 marks the beginning of the Republic, which also include the guillotining of 40,000 real or imagined opponents of the regime in the Terror, not to mention the genocide in the Vendée, in which hundreds of thousands died.

Holidays like Australia Day celebrate the survival of a nation which has experienced shame and defeat as well as triumph and progress. We can’t purge the past of the evil that has been done; it is a sad part of our heritage. We have to learn from it, lest we relive the mistakes our ancestors made.